Today in Supreme Court History: March 21, 1989

3/21/1989: Texas v. Johnson is argued.

Comments

[Krayt]

That's a little believer in free speech, not a big one. And if people recall, when he started the presidency, people were concerned he'd make efforts to sue people over speech easier.

Anyway, one doesn't preserve the flag, the symbol of freedom, including speech, by destroying freedom of speech itself.

[Bob from Ohio]

"destroying freedom of speech"

Flag burning isn't "speech" so no worries.

We have plenty of limits on "speech" in any event. You can't use a bull horn at 4 am in a residential area.

[Michael P]

Remember the mantra of the new left: Their violence is speech, your speech is violence.

[SRG]

Flag burning isn’t “speech” so no worries.

Take it up with the Supreme Court:

Texas v Johnson

[Dan Schiavetta]

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413 (decided March 21, 1966): The book is more widely known as "Fanny Hill", written in 1749, a hot property when I was a teenager, made into a movie which I saw years later and was a disappointment. Massachusetts brought a civil suit to have the book declared "obscene" under statute construed as anything not Constitutionally protected. Lower court did not apply the test of Roth, 1957 (no redeeming social value, catering only to prurient interest, etc.), so remanded. Meaning the trial judge would be forced to read the thing. Not sure how this turned out.

Manuel v. City of Joliet. Ill., 580 U.S. 357 (decided March 21, 2017): pretrial detention can be a separate unlawful "seizure" under Fourth Amendment (even though well after arrest) (defendant kept in jail even after testing showed seized pills contained no illegal substance)

Caetano v. Massachusetts, 577 U.S. 411 (decided March 21, 2016): Stun guns protected by Second Amendment even though not in existence when Bill of Rights adopted and no military use. Ouch!

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (decided March 21, 1973): state's system of financing of schools via property taxes (i.e., children in poor areas got worse education) was not subject for federal judicial review (poor people are not a protected class)

Missouri v. Frye, 566 U.S. 134 (decided March 21, 2012): ineffective assistance of counsel when defendant was not advised of plea offer before it expired

United States v. Grubbs, 547 U.S. 90 (decided March 21, 2006): upholding "anticipatory search warrants" (i.e., based on probable cause that at some future point illegal activity would be discovered) (here, possession of child pornography in package about to be delivered)

Kenyeres v. Ashcroft, 538 U.S. 1301 (decided March 21, 2003): denying stay of removal of Hungarian citizen wanted for embezzlement in his home country and who had overstayed his visa (Kenyeres stole $1.6 million from investors in Madoff-style scheme)

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (decided March 21, 2000): FDA overstepped when it tried to ban tobacco products; invaded field Congress had occupied via its legislation as to labeling and advertising

Adams Fruit Co. v. Barrett, 494 U.S. 638 (decided March 21, 1990): migrants injured in unsafe van on way to work could sue under Migrant and Seasonal Agricultural Worker Protection Act despite usual worker's comp ban (IOW: the "dual capacity" doctrine, where employee can't sue his employer even if liable for non-employer acts, such as manufacturing a defective product which injures employee on the job, can be superseded by Congress)

Brower v. County of Inyo, 489 U.S. 593 (decided March 21, 1989): a roadblock can be an unreasonable "seizure" and therefore possibly in violation of Fourth Amendment (driving stolen car in high-speed chase, died when crashed into 18-wheeler placed by police; widow sued under §1983)

[The Margrave of Azilia]

“San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (decided March 21, 1973): state’s system of financing of schools via property taxes (i.e., children in poor areas got worse education) was not subject for federal judicial review (poor people are not a protected class)”

Many state courts came to different conclusions under their state constitutions, ordering equal funding across their states regardless of property taxes.

I don’t know if such increased state centralization actually helped education, or whether it merely contributed to bureaucratic bloat.

[Mr. Bumble]

"I don’t know if this increased state centralization actually helped education, or whether it merely contributed to bureaucratic bloat."
Take a wild assed guess as to what happened.

[Dan Schiavetta]

Margrave,

The New Jersey Supreme Court ordered parity back in 1994. I can't look it up now but that decision was expected to trigger similar lawsuits in other states. I don't know how those turned out.

[John F. Carr]

The New Hampshire Supreme Court made a similar decision around the same time. Claremont School District v. Governor (two cases, one in 1993 and one in 1997). New Hampshire started paying a per-child subsidy to every school district. There are still followup lawsuits today, essentially demanding that all school funding come from the state. It is discriminatory to have different property tax rates in different districts.

[Dan Schiavetta]

thank you!

[Commenter_XY]

Yes, the infamous series of Mt. Laurel decisions. The decisions were so bad, they had roman numerals after them; serially bad. The school funding mechanism is routinely gamed. This is what happens in 1 party states, like the People's Republic of NJ.

We deserve the representation we elect. That is so true for NJ.

[John F. Carr]

Caetano was settled on remand and did not generate a second decision from the Supreme Judicial Court of Massachusetts. The next occasion to look at the state's stun gun ban came in Ramirez v. Commonwealth, 479 Mass. 331 (2018). A car was pulled over pretextually for a broken taillight but in fact for acting suspiciously in a high crime area. Occupant was charged with possession of a stun gun. Prosecution and defense both requested a ruling from the Supreme Judicial Court on whether the charge could stand. The court said no, but purported to stay its decision for 60 days to allow the legislature to criminalize stun guns in a constitutional manner. I wondered how the court had the right to make the Second Amendment ineffective for 60 more days in the face of Supreme Court precedent. Seventy-seven days later the governor signed a law making new stun gun rules (among many other changes), some of it going into effect immediately and some after 45 days.

[Mr. Bumble]

How does that not run afoul of the prohibition on ex post facto laws?

[John F. Carr]

I do not know what happened to other people caught with stun guns before the new law went into effect.

[SRG]

And guess who dissents in Manuel and joins Fat Tony's dissent in Missouri v Frye?

[Bob from Ohio]

The decision was bad so good for Trump.

[defaultdotxbe]

"they wanted to crawl up flag poles in Washington and try and burn flags but we stopped them"

Did someone remind him that it's always been illegal to burn someone else's flag without their permission? And further remind him that that's why they were allowed to stop them?

[I Callahan]

From the same people who think of yelling fire in a crowded theatre.

[Bob from Ohio]

"certainly not ‘small government.’"

‘small government’ doesn't work anymore.

[I Callahan]

Well, you're consistent anyway. We live in a time where the left believes burning down buildings during a riot is "non-violent".

[Mr. Bumble]

Money doe not equal education especially if it is spent on bureaucrats.

[David Nieporent]

"Born into"? I don't think it's quite like being the citizen of a country. People choose their kids' school districts.

And everyone in a district is treated similarly. Each district decides how much it wants to spend.

[John F. Carr]

Stun guns could be considered dangerous weapons, like nunchucks, swords, or switchblades.

[wolfefan]

I'm sorry, but I don't understand your comment. What does yelling fire in a crowded theater have to do with burning your flag (unless you're burning it in a theater?)

[Mr. Bumble]

Is "dangerous weapon" an oxymoron?

[Mr. Bumble]

Thank you.

[John F. Carr]

Or tautology.

[Mr. Bumble]

Equal funding might be the ideal, but how do you make it work?
If a state provides an equal amount per student to each district can it prevent the local district from additional spending?
Even if that were so schools are controlled locally so decisions on how any money is spent (salaries, infrastructure etc.) can have an effect on educational outcomes.

[David Nieporent]

Why is the appropriate level of analysis the state?

Also, I think parents of disabled kids would be very unhappy to hear that they only deserve the same funding for their education as non-disabled ones.

[I Callahan]

My point is that each side of the divide has a view of which speech should be protected and which should not. And they’re nowhere near in alignment.

[Dan Schiavetta]

Historically (at least for us Americans) centralized government has taken over because there is inequality on the local level. The ur-example of that is the federal government abolishing slavery via the Civil War and the 13th Amendment. Of course, the devil is in the details.

[The Margrave of Azilia]

"materials of the nature that we readily enjoy today"

https://www.youtube.com/watch?v=5G33fniLwro

[Mr. Bumble]

Got a better construction or answer?